State ex rel. Washington County Juvenile Department v. K.M.S.

552 P.2d 578, 26 Or. App. 219, 1976 Ore. App. LEXIS 1629
CourtCourt of Appeals of Oregon
DecidedJuly 26, 1976
DocketNo. 8531, CA 5091
StatusPublished
Cited by19 cases

This text of 552 P.2d 578 (State ex rel. Washington County Juvenile Department v. K.M.S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Washington County Juvenile Department v. K.M.S., 552 P.2d 578, 26 Or. App. 219, 1976 Ore. App. LEXIS 1629 (Or. Ct. App. 1976).

Opinions

FOLEY, J.

The circuit court for Washington County terminated the parental rights of the mother, K.M.S., to three of her children, ages four, three and two. She appeals, assigning two principal grounds for reversal: (1) that the preponderance-of-evidence standard of proof established by ORS 419.525(2) is unconstitutional and (2) that there is insufficient evidence to support the trial court’s finding that the mother failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the children for one year prior to the filing of the petition to terminate parental rights on September 19, 1975. ORS 419.523(3).

On April 6, 1974, the police were notified by the manager of Tall Firs apartment in Washington County that the two-year-old child of K.M.S. had been found unattended and half naked near the creek behind the apartment in which the children were living. The 11-year-old sister of the children was responsible for them while the mother was in Portland working. The mother had been gone for several days. After the situation came to the attention of the police, an employe of the Children’s Services Division (CSD) visited the apartment and described the conditions which he found:

"I recall the kitchen, which was the first thing that was off the adjoining entrance, being filled with uncleaned, unwashed dishes. I had an opportunity to open the refrigerator and what I found was a half a bottle of milk that smelled sour and seemed to be fermenting.
"Following that I went in to the living room and I found stacks of dirty, stale, rancid, smelly clothing. I found one piece of furniture which was a chaise lounge, an outdoor chaise lounge which had torn webbing in it and that was the only furniture in the living room.
"I can recollect two bedrooms, each bedroom had a mattress on the floor that was stained and smelly. There was one of the bedrooms that had a new crib in it. Two of [222]*222the little children were sleeping on one of the mattresses. There was, through the hall, there was a bathroom on— in the bathroom there were newspapers and on the newspapers there was a little puppy and several mounds of dog defecation. I also recollect a potty-seat that was filled with what appeared to be stale urine.
The entire apartment smelled like the inside of a very rancid diaper pail.”

The children were removed from the home and at a preliminary court hearing the next day, April 9,1974, which the mother attended, the court; ordered that a petition be filed and that temporary custody of the children be awarded to CSD. Mrs. Everson, a caseworker, was involved with the placement of the three children and at the request of the mother accompanied K.M.S. to the apartment shortly after the hearing. She recalled a very disorderly house, "* * * a mattress or so on the floor and clothes scattered all about. * * * I had the feeling of dirt. * * * [B]arely any food at all.” About 10 days later Mrs. Everson was able to contact the mother at her place of employment, a bar-restaurant in downtown Portland, to ask her about tetanus shots for one of the children who had cut her lip. This was the last time Mrs. Everson was able to contact the mother while she was working on the case. Mrs. Everson was transferred to Multnomah County on October 31, 1974. She testified about her efforts to contact the mother. On May 9, 1974, she wrote the mother, at the address given her by the mother, concerning an appointment for the mother to see the children; the letter was returned. Meantime, Judith Ann Zupan, a CSD caseworker, became involved with the children’s care in March 1975. Since the whereabouts of the mother was unknown, her assignment was to attempt to locate her. Zupan told of her unsuccessful efforts to contact the mother through previous addresses, by contacting both Portland and Vancouver police departments, the FBI, the Motor Vehicles Divisions of both Oregon and Washington, and by checking with utility companies. She was also [223]*223unable to discover the whereabouts of the mother by contacting the older children of the mother.

The next contact with the mother was on the day before Christmas in 1974 when she suddenly appeared at the CSD office in Portland and demanded immediate visitation with her children. The CSD worker called the Washington County CSD and arranged for the mother to go to Washington County where the children were located and arrange visitation. The mother told the Portland CSD worker that she had some presents for her children and asked if the CSD worker would see to it that they were delivered. The CSD worker agreed, but the mother neither brought the presents nor contacted the Washington County CSD to arrange visitation.

The next appearance by the mother was on April 4, 1975, when she filed a document in the juvenile department of Washington County, referred to as a motion and demurrer. The mother indicated in her discussions with CSD workers that the filing was done at that particular time because the termination statute requires that wilful neglect continue for more than one year.

Although letters were sent to the mother by Mrs. Zupan of CSD requesting contact and suggesting a plan for reintegration of the three children into the mother’s home, there was no response from the mother. Finally, in answer to a certified letter, the mother came to the CSD office on June 13, 1975, and demanded immediate visitation with her children. While Mrs. Zupan indicated a willingness to arrange visitation, the mother refused to discuss anything about her whereabouts in the past and also refused to discuss her current situation. She told Mrs. Zupan that she would provide information in the court hearing which was scheduled for June 24, 1975, involving an older minor daughter, but did not appear at that hearing.

In August 1975, Mrs. Zupan testified she wrote [224]*224another letter to the mother in which she stated that since none of her contacts for the last 13 months had been such as to lead to the mother’s reconciliation with her children, CSD now considered her contacts incidental and was moving through appropriate channels for termination of her parental rights to the three younger children.

A petition for termination of parental rights was then filed on September 19,1975, and after hearing on January 9, 1976, the testimony from which occupied 545 pages of transcript, the trial court terminated the rights of the mother. She was represented by an attorney at the hearing but chose to cross-examine witnesses, make objections, testify herself, and argue to the court at the conclusion of the testimony.

The court made the following findings:

"1. [K.M.S.] has failed to provide care or pay a reasonable portion of substitute physical care and maintenance for her children since April 6, 1974, although it has not been shown that she had the ability to do so;
"2.

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Cite This Page — Counsel Stack

Bluebook (online)
552 P.2d 578, 26 Or. App. 219, 1976 Ore. App. LEXIS 1629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-washington-county-juvenile-department-v-kms-orctapp-1976.